Volume 189 — New York Appellate Division Reports

<p>Landlord and tenant—creation of new lease by holding over and acceptance by landlord of rent at old rate — Laws of 1918, chapter 303, section 1, limiting period for valid oral lease in city of New York — lease created by tenant holding over not affected by said statute.</p> <p>Where a tenant under a written lease for a year, providing that he was to have the premises free from the payment of any rent for the month of January, continued in possession of said premises upon the same terms and conditions for several years, no further lease having been made, and after being notified by the landlord that the rent would be increased declined to pay, claiming that his lease had been renewed and that he now held the premises under a lease for one year upon terms set forth in the written lease, and the landlord subsequently accepted the rent at the old rate, a new letting was effected for the same period and under the same terms mentioned in the prior lease.</p> <p>Section 1 of chapter 303 of the Laws of 1918, providing that “ An agreement for the occupation of real estate in the city of New York shall create a tenancy from month to month, unless the duration of the occupation shall be specified in writing by the parties thereto or by their lawful agents,” creates a new limitation upon, oral contracts and limits the period for which a valid oral lease may be made to one month.</p> <p>When a tenant holds over the landlord may elect to treat said tenant as bound for another year, not by virtue of an express contract, but by implication of law springing from the circumstances.</p> <p>Hence, since the new lease aforesaid was created by law and not by the agreement of the parties it was not affected by section 1 of chapter 303 of the Laws of 1918.</p> <p>Jenks, P. J., and Kelly, J., dissented in part.</p>

<p>Insurance — certificate of fraternal benefit society and contract of ordinary life insurance company distinguished — nomination of person as beneficiary not included in class named in constitution •— action of such beneficiary to recover upon certificate — defense — waiver—estoppel — construction of certificates of fraternal benefit societies.</p> <p>A certificate of insurance issued to a member of a fraternal benefit society organized under the Insurance Law of this State is a contract resting upon legal principles different from those which are applicable to an ordinary life insurance contract. Under an ordinary life insurance contract the policy itself and the documents therein referred to constitute the entire agreement between the assured and the insurance company. In the case of a fraternal benefit society certificate, the certificate, charter, by-laws and application together constitute the contract.</p> <p>The nomination of a person as beneficiary who is not included in the class named in the charter is a nullity and such person cannot recover under a certificate so issued.</p> <p>Hence, recovery cannot be had under a certificate issued to a sister of the half blood where the constitution of the fraternal benefit society did not provide for the naming of such person as beneficiary. This is especially true where there was printed upon the application in large letters the words “ who may be designated as beneficiary,” followed by the provision of the constitution containing the words “ brothers and sisters of the whole blood,” and under the line where the assured designated a sister of the half blood as beneficiary and stated that she was related to him as sister, the following words were printed: “ (Do not name * * * half brother or sister * * *.)”</p> <p>A fraternal benefit society cannot be held to have waived the defense that the beneficiary was not one of the persons who could be named as such or to have estopped itself from pleading such defense where it did not have knowledge of the fact that the beneficiary named was a half sister of the assured and where it was under no obligation to make an investigation of the facts.</p> <p>Although the courts adopt a very liberal policy in construing certificates of fraternal benefit societies in order to do justice where the language of the contract is clear and unmistakable and there is an entire absence of evidence of waiver or estoppel the contract will be enforced as written.</p>

<p>Municipal corporations—liability of county of Westchester for alleged wrongful and illegal acts of sewer commissioners — rule of respondeat superior not applicable — complaint — no common-law cause of action against county — governmental act.</p> <p>The county of Westchester cannot be held liable under the rule of respondeat superior, for trespass and injury to property alleged to have been caused by the wrongful and illegal acts of sewer commissioners appointed by the Legislature under chapter 646 of the Laws of 1905 and of their successors appointed by the Governor pursuant to chapter 361 of the Laws of 1911 where it appears that the county neither selected the commissioners, employed them, nor had power to direct or supervise them in any way, and that its sole function was to provide money with which to pay the expenses incurred by the commissioners, which money was to be obtained by assessment or taxation upon the limited area which the commissioners and not the county should decide to be benefited by the construction of the sewer.</p> <p>Complaint in an action by landowners against the county upon the aforesaid ground held not to state a cause of action.</p> <p>The plaintiffs in such action at no time had a common-law cause of action against the county for the wrongs or trespasses of the sewer commissioners for the reason that under the act of 1905, providing for their original appointment, and the act of 1911, appointing their successors, the commissioners did not represent the county, and for the additional reason that the construction of the sewer in question was a governmental act for which the county would in no case be liable, nor is there liability imposed upon the county under the County Law.</p>

<p>Separate appeals by Martin Cantine Company and by Byron L. Davis, as trustee, from so much of an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of "Ulster on the 29th day of October, 1918, as vacated awards made to the appellants by commissioners in condemnation proceedings and directed a new trial before new commissioners, and granted other relief,</p>

Appeal by the claimant, William B. Brooks, from a judgment of the Court of Claims, entered in the office of the clerk of said court on the 11th day of October, 1917, dismissing his claim.

<p>Appeal by the defendant, William S. Tipple, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 31st day of October, 1918, upon the report of a referee appointed to hear and determine the issues.</p>

Appeal by the defendant, George Burns, from an order of the Supreme Court, made at the Schuyler Special Term and entered in the office of the clerk of the county of Schuyler on the 2Sth day of September, 1918, granting plaintiff’s motion for a new-trial made upon the minutes after a jury had rendered a verdict of no cause of action.

<p>Motor vehicles — negligence — collision of automobiles — erroneous charge — burden of proof.</p> <p>Where in an action to recover damages caused by the collision of automobiles coming from opposite directions, each party claiming negligence upon the part of the other, it appears that before the accident the defendant’s steering gear had become disabled, but had been repaired, and that as the cars approached each other the defendant’s machine, through another failure of the steering gear, swerved to the left in front of the plaintiff’s car, the negligence of both parties was for the jury.</p> <p>But in such action it was error to charge in substance that the fact that the defendant’s car was on the wrong side of the road changed the burden of proof from the plaintiff to the defendant, and that the latter must show a satisfactory reason why his car was there, especially where the charge, taken as a whole, conveyed to the jury the idea that the defendant in order to escape defeat must establish by a preponderance of evidence, either that the plaintiff was negligent, or that he, the defendant, was not negligent.</p> <p>In a negligence action the burden of proof is always on the plaintiff.</p>

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the plaintiff, Charles Fosmire, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Ulster on the 27th day of February, 1919, denying his motion for judgment on the pleadings, consisting of a complaint and the demurrer thereto, and dismissing the complaint.

Appeal by the defendant, The City of New York, from an award of the State Industrial Commission, entered in the office of said Commission on or about the 15th day of November, 1918.

<p>Appeal by the defendants, Endicott, Johnson & Co. and another, from an award of the State Industrial Commission,* entered in the office of said Commission on the 23d day of January, 1919, and also from a prior award entered in said office on the 9th day of December, 1918.</p> <p>An award of compensation was first denied on April 12, 1916, on the opinion of Commissioner Lyon. (8 State Dept. Rep. 445.) This award was rescinded and an award made. (See 19 State Dept. Rep. 431.)</p>

Appeal by Willard Lester, individually and as trustee, from a decree of the Surrogate’s Court of the county of Albany, entered in the office of said Surrogate’s Court on the 30th day of December, 1918, surcharging the accounts of the trustee and removing him. The appeal was transferred from the Third Department to the Fourth Department. (See 187 App. Div. 965.)

Appeal by the defendant, Brooklyn Borough Gas Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of August, 1918, upon the decision of the court after a trial at the Kings County Special Term.

<p>Trust — will — provisions of codicil authorising investments by trustee and relieving it from liability for loss, construed — testamentary trustee only liable for net loss to trust fund — assignments and release by beneficiaries not a bar to right to have account of trustee surcharged.</p> <p>Under a codicil authorizing a testamentary trustee to receive securities and to hold the same under a trust “or to sell the same and invest the proceeds thereof in like securities or in such railroad bonds, stocks and other securities as it shall in the exercise of a sound discretion deem to be for the best interest of said trust estate, it being my will that -the said trustee shall not be limited to the usual investments of trust estates,” and further providing “ that my said trustee shall not be held liable or responsible for any loss which may occur to said trust estate by reason of the retention of any of the securities which they may so receive from my executors or by reason of any investments made in accordance with these directions,” said trustee should not be held liable and his account surcharged for loss resulting from an investment of ea/sh in stock of a railroad company then in good repute and paying good dividends, where it appears that subsequently the general conditions in this country became most extraordinary owing to the war, and that during said period there was a large depreciation in the market values of stocks of other good railroad companies.</p> <p>The trustee was authorized under the codicil to invest both the cash and the proceeds from the sale of securities actually delivered to it.</p> <p>The provision of the codicil exempting the trustee from liability to loss from investments was ample protection from liability for retaining the stock for a period of thirteen yeaks, and it should not be held liable for negligence either in the original purchase or in the retention of the stock. If the trustee were liable for the purchase and retention of the stock and, therefore, chargeable with its depreciation in value, it should be credited with what it received upon the sale of the subscription rights appurtenant to the stock, and be held liable only for the net loss to the trust fund resulting from the entire transaction.</p> <p>Assignments to the trustee by two of the beneficiaries under the trust of their interest in the trust fund, and the execution of a release to the trustee by another beneficiary, upon receiving the securities which had been set aside as his share, did not operate to bar the rights of said beneficiaries to have the account of the trustee surcharged, if said rights otherwise existed.</p>

Appeal by the defendant, Michael Connelly, from a judgment of the County Court of Rockland county, rendered against him on the 2d day of July, 1918, convicting him of the crime of grand larceny in the second degree.

Appeal by the plaintiff, Elizabeth C. Delap, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Elngs on the 11th day of February, 1919, dismissing the complaint on the merits upon the decision of the court after a trial at the Kings County Special Term.

Resubmission of an appeal by Lillian B. Friedlander, now Lillian B. Leavitt, executrix under the will of Joseph B. Friedlander, deceased, from a decree of the Surrogate’s Court of Kings county, entered in the office of said Surrogate’s Court on the 11th day of October, 1916, settling the accounts of the executrix herein.

Reabgdment of an appeal by the defendant, Edward Bishop Redmond, from a judgment of the County Court of Kings county, rendered against him on the 27th day of November, 1916, convicting him of the crime of perjury, and also from an order denying defendant’s motion for a new trial and an arrest of judgment.

Appeal by the defendant, Alfonse S. Yicchiarielle, from a judgment of the County Court of Orange county in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 19th day of October, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of October, 1918, denying his motion for a new trial made upon the minutes. The action was brought in replevin to recover certain flags and other property.

<p>Appeal by the plaintiff, Marie Mager, from an order of the County Court of Nassau county, entered in the office of the clerk of said county on the 10th day of May, 1919, opening defendant’s default in appearance before a justice of the peace of Nassau county, setting aside the judgment of the justice in the sum of $109.86, and ordering a new trial before the justice upon the payment by the defendant of $25 costs.</p> <p>The order was made pursuant to section 3064 of the Code of Civil Procedure.</p>

<p>Appeal by the petitioner, Thomas J. Gorman, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th day of October, 1919, denying his petition for a writ of mandamus to the board of registration.</p> <p>The petitioner’s affidavit presented the following facts:</p> <p>“ That heretofore in the month of July, 1919, Edward J. Martin, my brother-in-law, with whom I have been living for the past twenty-eight years, took a lease in writing on premises known as 45 Putnam Avenue, which is in the 27th Election District of the 11th Assembly District of the County of Kings, and that the said lease recites the fact that we were to have possession of the premises on the 1st day of October, 1919. Prior to the 1st day of October, 1919, I have been living with my brother-in-law, whose name is above mentioned, at 315 Quincy Street, for the last eight years which is the Third election district of the 17th Assembly District. We are unable to get possession of the premises 45 Putnam Avenue, due to the fact that an order of the Court in a dispossess proceeding gave the tenant therein time until Tuesday, the 14th day of October, 1919, in order to get out.”</p> <p>On the denial of the above application the petitioner’s appeal was heard by this court on the original papers.</p>

<p>Liquor Tax Law — provision for seizure of liquors strictly construed — failure to deliver copy of warrant to person in possession.</p> <p>The Liquor Tax Law, authorizing search for, seizure and forfeiture of liquors kept for unlawful traffic, provides for a proceeding in rem and must be strictly followed.</p> <p>Hence, where a paper purporting to be a copy of a warrant for search and seizure was posted, as required by subdivision 2 of section 33 of the Liquor Tax Law, but did not have any date or signature and was not delivered to the person apparently in possession as required by said statute, the proceeding should be dismissed and the liquors returned.</p>

<p>Trust — suit by testamentary trustee for accounting and to be relieved from trusteeship — discretion of court in appointing individual instead of trust company.</p> <p>In a suit by a substituted trustee named in a -will to have his accounts ' passed and to be permitted to retire from the trusteeship, none of the adult defendants appeared by attorney or answered the complaint but the guardian ad litem for the infant defendants filed the usual guardian’s answer, and application for final judgment was made on notice to the guardian ad litem alone, and when the matter came before the court the only appearance was by the attorney for the plaintiff. Admissions of service of the summons and complaint by three of the defendants, namely, the life beneficiary, one of his sons who is entitled to a life estate on the death of his father, and a sister of the original testator who had a remote contingent interest as heir at law, contained a request that a trust company be appointed to succeed the plaintiff upon his retiring, but the complaint contained no suggestion that said trust company be appointed, and the infant defendants and five of the adult defendants made no suggestions or requests, nor was there anything in the papers presented to the court to show that the trust company had any connection with the estate.</p> <p>Held, that on the record before the judge at Special Term there was not an abuse of discretion by the court in appointing an individual as substituted trustee instead of the trust company.</p>

<p>Appeal by the defendant, City of Beacon, from a judgment of the Supreme Court in favor of the plaintiff,- entered in the office of the clerk of the county of Dutchess on the' 10th day of June, 1918, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 12th day of June, 1918, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Election Law — necessity for separate ballots for candidates for town offices at general election — provisions of Election Law and Town Law construed.</p> <p>Section 341 of the Election Law, amended by chapter 821 of the Laws of 1913 so as to extend to all general elections the provision for a separate ballot for candidates for town offices, which before had been limited to elections in even-numbered years, and section 316 of said statute, amended by the same chapter so as to strike out entirely the provision for a separate box for such separate ballots, and section 68 of the Town Law, providing that there shall be no such separate ballot, construed and held, that at.a general election in an odd-numbered year there need not be a separate ballot for candidates for town offices.</p> <p>Jenks, P. J., dissented.</p>

Separate appeals by the trustee, Anson Baldwin, and by Frederick H. Curtiss, a life beneficiary, from parts of a decree of the Surrogate’s Court of Westchester county, entered in the office of the clerk of said Surrogate’s Court on the 12th day of December, 1918, on the second intermediate accounting.

Appeal by the plaintiffs, Daniel Adams and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 20th day of January, 1919, upon a dismissal of the complaint by direction of the court at the close of the case and upon a verdict in favor of the defendant on its counterclaim rendered by direction of the court.

<p>Appeal by the defendants, Lawson Purdy and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of November, 1918, canceling the assessment against the relator herein, and also from a so-called enrollment entered in said clerk’s office on the 25th day of November, 1918.</p>

Appeal by the defendants, Lawson Purdy and others, as commissioners, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of June, 1918, canceling the assessment against the relator herein, and also from a so-called judgment entered in said clerk’s office on the 9th day of July, 1918, granting the same relief.

<p>Appeal by Harry J. Murphy from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of October, 1919, denying his application for an order directing the board of elections of the city of New York to cause his name, as a candidate of the Home Rule party for the office of member of the Assembly for the sixteenth district, to be printed on the official ballot for the general election to be held November 4, 1919.</p>

<p>Elections — certificate of independent nomination — registration of electors signing same— jurisdiction of court to entertain application of candidate to have name printed on official ballot, made prior to completion of registration — duties of board of elections with respect to receiving and filing certificates of independent nomination.</p> <p>Under subdivision 6 of section 123 of the Election Law, as amended by chapter 537 of the Laws of 1916, providing, among other things, that the name of no person signing a certificate of independent nomination shall be counted tmless such person shall be registered, the right of a person so nominated to have his name printed on the official ballot depends upon, among other things, whether before or after filing the certificate of nomination a sufficient number of electors signing the same shall be registered or shall register.</p> <p>Although a person so nominated fails to show that a sufficient number of his nominators have registered, but it appears that the period for registering has not expired, public policy requires that the court entertain his application to have Ms name printed on the official ballot in advance of the completion of the registration, so that all questions presented relating to the validity and sufficiency of the certificate of nomination may be promptly decided, leaving only the question with respect to registration.</p> <p>The duties of the board of elections with respect to the receiving and filing of certificates of independent nomination are now wholly mimsterial.</p> <p>The duty of executing the election laws, however, is expressly enjoined upon said board by section 190 of the Election Law, as amended by chapter 369 of the Laws of 1919, and it is its duty to refrain from acting upon papers purporting to be certificates of nomination, wMeh do not appear on the face thereof to be executed in the form and manner required by law, but it has no judicial power to investigate or decide with respect to the validity of such a certificate depending on matters dehors the record.</p> <p>The former rule that all certificates of nomination to wMeh no objection is filed are to be deemed valid, no longer obtains.</p> <p>The provisions of subdivision 2 of section 760 of the Penal Law that a person who “ files or receives for filing a certificate of nomination, knowing that any part thereof was falsely made * * * is pumshable by imprisonment for not more than five years,” do not warrant a board of elections in rejecting a certificate of nomination on the ground that in its opinion certain signatures thereon are forged, for the members of said board run no risk of prosecution under said statute for not rejecting a certificate wMeh they merely suspect or are of opimon is in part forged.</p> <p>Jurisdiction of a board of elections held limited to the examination of the ■ face of a certificate of independent nomination and to counting the names of the nominators who registered, and held further that in so far as a letter of said board indicates that it went beyond said jurisdiction, its action was null and void.</p>

<p>Eminent domain—condemnation of lands for Forest Preserve — consent of Governor prerequisite — written consent essential.</p> <p>The exercise of the right of eminent domain must be in strict conformity with the terms of the statute conferring the right.</p> <p>As the statute (Laws of 1901, chap. 94) authorizing the condemnation of land for the State Forest Preserve provides that land shall not be acquired “ except with the consent of the Governor,” such consent ia necessary to the validity of a condemnation, and, the consent being jurisdictional, it must be obtained before the filing and service of the notice in the proceeding.</p> <p>The consent of the Governor necessary to give validity to such proceeding should be formal and in writing, and a mere verbal statement by the Governor made to one of the Commissioners that the land should be acquired is not the consent required by the statute and is insufficient to validate the condemnation.</p> <p>De Angelis, J., dissented.</p>

<p>Cross-appeals in the first proceeding from an order of the Supreme Court, made at the New York Special Term directing the comptroller to pay certain awards for the widening of Arthur avenue in the borough of The Bronx to Elizabeth C. Riker.</p> <p>Cross-appeals in the second proceeding from an order denying the petition of Henry G. Leist for the payment to to him of such awards.</p>

<p>Partnership — agreement creating joint adventure — continuation of project by one joint adventurer for his own benefit — liability to account to coadventurer.</p> <p>The president of a corporation holding the stock of an oil company desiring to finance said company sought the assistance of the plaintiff and induced him to endeavor to raise money for said purpose. The plaintiff interested the defendant in the project, and the corporation, the plaintiff and defendant entered into a written agreement whereby both the plaintiff and defendant were to advance certain sums of money to be secured by the notes of the oil company and by a certain proportion of its stock and bonds to be issued. It was specifically agreed that the profits of the transaction were to be divided between the defendant’s firm, which was subsequently incorporated, and the plaintiff in proportion to the moneys advanced by them to the oil company. As the plaintiff refused to accede to the defendant’s request that he decrease his percentage of compensation the defendant notified the plaintiff that he would exercise his option to refuse to advance moneys and that they both should be “ free to take such further steps in the matter as we may elect without prejudice,” to which the plaintiff made protest, contending that the defendant was not free to take further steps in the matter by eliminating the plaintiff therefrom and acting for his own benefit. On all the evidence held, that the plaintiff and defendant’s firm became joint adventurers in the enterprise and that the defendants could not exclude the plaintiff for the purpose of securing the entire benefits to themselves.</p> <p>That as the defendant after its incorporation and in spite of the plaintiff's .protest had agreed to finance the oil properties for its own benefit, it should be required to account to the plaintiff for his share of the profits.</p> <p>A joint adventure is subject to the same rules as a technical partnership. Where the partnership has for its object the completion of a specified piece of work, or the effecting of a specified result, it will be presumed that the parties intended the relation to continue until the object has been accomplished and until that time arrives one partner cannot terminate the partnership and continue the enterprise for his own benefit, nor can one partner exclude the other without his consent. While the agreement may be terminated by consent, the consent must be mutual.</p> <p>Copartners and joint adventurers owe the duty of utmost good faith to their copartners and coadventurers, and until the copartnership is terminated or joint adventure is abandoned, a copartner or joint adventurer cannot act for himself. If he does, and thereby obtains for himself the benefits that otherwise would accrue to the partnership or joint adventurers, he will be held liable in equity to account to his copartner or eoadventurers.</p>

Cross-appeals by the plaintiff, Linda A. Painter, and by the defendant, Austin B. Fletcher, as executor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of August, 1918, upon the decision of the court after a special verdict had been received, and also from an order entered in said clerk’s office on the 24th day of July, 1918, denying defendant’s motion for a new trial made upon the…

<p>Corporation — action to charge directors with waste — sale of defective goods for account of vendor — rescission of sale ratified by vendor.</p> <p>Where in an action brought by stockholders and directors of a corporation to charge the defendants, their codirectors, with a waste of the corporate assets and to obtain an accounting it appears that the corporation having received goods from abroad, notified the vendor that they were not merchantable owing to defects and that the corporation would store them subject to order, and the vendor having accepted payment for the portion of the goods which were merchantable directed theieorporation to take the defective goods out of storage and return them, there was a ratification by the vendor of the rescission of the contract of sale and, it being impossible to return the goods to Bohemia owing to the existing war, the defendants are not liable for waste by selling them for the account of the vendor for, owing to the rescission, the goods were not assets of the corporation.</p>

Appeal by the defendant, Leonard Joseph, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of June, 1919, denying his motion for an order directing the plaintiff to make the allegations of the complaint definite and certain; to strike therefrom allegations which are immaterial and redundant; to strike therefrom allegations which are evidentiary and to separately state and…

Appeal by the defendant, Leonard Joseph, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of July, 1919, denying his motion for an order directing the plaintiffs to make the allegations of the complaint definite and certain; to strike therefrom allegations which are immaterial and redundant; to strike therefrom allegations which are evidentiary and to separately state and…

<p>Eminent domain — municipal corporations — street opening, city of New York—Unionport road is public highway — evidence — presumption that established highway continues to be such.</p> <p>Proceeding brought by the city of New York to acquire lands for opening and extending a street. Evidence examined, and held, to show that Unionport road, which is to be closed and discontinued, has been a public highway since 1726 and that the commissioners of estimate should be required to determine the damages to the petitioner’s property caused by the closing of said street.</p> <p>In such proceeding the petitioner was not required to prove that the Union-port road of to-day is the same as the Unionport road of 1726, for that will be assumed by the similarity of name in the absence of inherent improbability or proof to the contrary, and especially so where the original description of the street is by metes and bounds in terms of the then ownership of adjoining real estate.</p> <p>When a highway is once shown to exist it is presumed to continue until it is shown to exist no longer, and when once established it continues until discontinued according to law.</p>

<p>Appeal by the defendant, Simon Greenberg, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 28th day of April, 1919, denying his -motion for a change of venue in an action to recover for personal injuries alleged to have been sustained by reason of defendant’s negligence.</p>

Appeal by the defendant, Booth Steamship Company, Ltd., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of February, 1919, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 14th day of February, 1919, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Ivar May, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 18th day of February, 1919, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 10th day of February, 1919, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Sugarland Manufacturing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of May, 1919, denying its motion to vacate the service of the summons herein.</p>

Appeal by the defendant, A. Goodman & Sons, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of December, 1918, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 24th day of December, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by Charles Meyers and Jacob Manne from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of August, 1919, directing two attorneys to execute and deliver a deed of certain real estate to Rose L. Silverman.

Appeal by the defendants, J. Herbert Ware and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of August, 1919, denying their motion to vacate an order for their examination before trial.

Appeal by the plaintiff, The Kursheedt Manufacturing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of August, 1919, permitting the defendants to serve an amended answer.

<p>Appeal by the plaintiff, William O’Neill, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of March, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of March, 1918, denying plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, John C. Rodgers, Jr., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 20th day of December, 1918, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 23d day of December, 1918, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Partola Manufacturing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of August, 1919, granting plaintiff’s motion for letters rogatory to examine certain witnesses in Genoa, Italy.

Appeal by the defendant, Elizabeth Coccola, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of June, 1919, denying her application to revoke the appointment of plaintiff’s guardian ad litem, and for the appointment of a responsible person as guardian, unless the present appointee qualifies by giving security for costs to the defendant in the sum of $250.

<p>Street railways — negligence — contributory negligence — wagon while turning to cross street near intersection struck by trolley car injuring driver— cross-examination — evidence — prior accidents— admissibility of ordinance requiring vehicle turning into another street to pass to right of and beyond street intersection.</p> <p>In an action by the driver of a wagon for personal injuries alleged to have been sustained by the wagon being struck by a trolley car as the plaintiff was turning to cross the street, it is reversible error to permit the cross-examination of the plaintiff as to prior accidents, although on said examination in answer to the question whether he had crossed the crossing giving notice, he swore: “ I have played safety first.” Whether plaintiff had been negligent at other times or even whether he was generally negligent is not a pertinent fact.</p> <p>Where, in such an action, it appears that the plaintiff at the time of the accident was not turning into another street, and that the point where he turned was not a street intersection, it was reversible error to admit in evidence an ordinance requiring a vehicle turning to the left into another street to pass to the right of and beyond the intersection before turning, especially where the jury could have inferred from the court’s charge and</p> <p>refusal to charge that the plaintifi was guilty of contributory negligence or at least that it was evidence upon his contributory negligence that he did not pass to the right of and beyond the intersection of the street before turning around.</p>

<p>Appeal by the defendant, Michael J. Leahy, from an order and determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of November, 1918, modifying a. judgment of the Municipal Court of the City of New York, Borough of Manhattan, First District, in plaintiff’s favor and affirming said judgment as modified.</p>

<p>Appeal by the plaintiff, Fairmount Film Corporation, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of May, 1919, as overrules plaintiff’s demurrer to the first separate defense in the answer.</p>

<p>Husband and wife — action for separation — evidence not justifying judicial decree — incompatibility of temper — evidence — contradicting defendant as to irrelevant facts brought out on cross-examination.</p> <p>Suit brought by a wife for separation because of alleged cruel and inhuman treatment such as to render it unsafe and improper for her to cohabit with the defendant. Evidence examined, and held, that while the parties might not be able to live in harmony there was not sufficient proof to warrant a judicial separation.</p> <p>The fact that incompatibility exists and that a husband and wife find it impossible to live in harmony, while furnishing justifiable reasons as between themselves for separating, does not meet the requirements for a judicial separation as fixed by the statute and the policy of the State.</p> <p>Held, that the facts testified to by the plaintiff herself, if true, would bring the ease within the statute, but that a judicial separation should be denied because her testimony was contradicted by the defendant and was uncorroborated in essential details and was in some respects inherently improbable.</p> <p>Where on cross-examination the defendant stated that he had never struck the plaintiff, it was error to allow the plaintiff to give testimony to contradict the defendant as to an alleged assault after the action had been commenced.</p> <p>Page and Merrell, JJ., dissented.</p>

<p>Appeal by the defendant, McKinley Music Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of January, 1919, upon the verdict of a jury, and also from .an order entered in said clerk’s office on the 22d day of January, 1919, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Henri Gutmann Silks Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of July, 1919, denying its application for an injunction pendente lite.</p>

Appeal by the defendant, The New York Central Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 7th day of May, 1919, upon the verdict of a jury for $15,420, later reduced by the court to $15,000, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, William S. Hawk and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Onondaga on the 20th day of February, 1919, upon the decision of the court, the facts having been stipulated and a jury having been waived.

Appeal in both actions by the defendant, The New York, Ontario and Western Railway Company, from judgments of the Supreme Court in favor of the plaintiffs, Lydia M. Hershey in the first action, and Malcolm J. Hershey in the second action, entered in the office of the clerk of the county of Oneida on the 1st day of April, 1919, upon the verdict of a jury for $500 in the first action and for $350 in the second action, and also from orders entered in said clerk’s office on the…

<p>Agricultural Law, section 201, construed— “ Durkee’s Salad Dressing and Meat Sauce” not an adulterated or misbranded article — statutes — construction — effect of practical construction of ambiguous statute by public officers.</p> <p>“ Durkee’s Salad Dressing and Meat Sauce,” a food compound made under a secret formula and containing vinegar, salt and other ingredients, none of which is harmful in any way, is not an adulterated article within the meaning of section 201 of the Agricultural Law.</p> <p>The proviso contained in section 201 of the Agricultural Law is not an added prohibition to the preceding subdivisions of the section defining misbranded articles, but it qualifies and limits the prohibitions preceding it in the same section.</p> <p>“ Durkee’s Salad Dressing and Meat Sauce,” a food compound containing no harmful ingredients, when put up in packages labeled with the quotation given, is an article sold under a distinctive name within the meaning of the proviso in section 201 of the Agricultural Law, and is not, therefore, misbranded within the meaning of the preceding subdivisions of that section.</p> <p>The practical construction of a statute by public officers whose duty it is to enforce it, acquiesced in by all for a long period of time, is- considered by the court as of great importance in its interpretation in a case of serious ambiguity.</p>

Appeal by the plaintiff, Tony DiCaprio, as administrator, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 15th day of March, 1919, upon a dismissal of the complaint at the close of plaintiff’s case, and also from the order directing a nonsuit.

Appeal by the plaintiff, West Virginia Pulp and Paper Company of Delaware, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 6th day of September, 1918.

Appeal by the defendants, Estey Piano Company and another, from an award and order of the State Industrial Commission, entered in the New York city office of said Commission on the 4th day of April, 1919.

Appeal by the defendant, George H. Davis, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 23d day of October, 1917, and also from an order entered in said clerk’s office on the 22d day of October, 1917, denying defendant’s motion for a new trial made upon the minutes. .

<p>Workmen’s Compensation Law — accident arising out of employment— janitress of apartment house injured in her own apartment in said house by falling plaster — necessity that injury be received while employee doing duty of employment and that it be one of risks of employment.</p> <p>An award cannot be made under the Workmen’s Compensation Law to the janitress of an apartment house, who resided in one of the apartments, for injuries received from plaster falling on her when she was about to sit down at her kitchen table to eat her breakfast, as at the time of the injury she was doing nothing for her employers nor anything incidental to her employment, but was serving, exclusively, her own purposes.</p> <p>An injury to be withiu the protection of the Workmen's Compensation Law must be received while the workman is doing the duty he is employed to perform, and it must be one of the risks connected with the employment flowing therefrom as a natural consequence and directly connected with the work.</p> <p>John M. Kellogg, P. J., dissented.</p>

Appeal by the defendants, Fleischmann Manufacturing Company and another, from a decision and award of the State Industrial Commission, made on the 28th day of April, 1919, and entered in the office of said Commission.

Appeal by the defendants, Arthur K. Salomon and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of June, 1919, denying their motion to vacate an order entered on the 29th day of May, 1919, directing the examination before trial of the defendant Charles H. Bernheim.

Appeal by the defendant, August Abraitis, from a judgment of the County Court of Kings county, rendered against him on the 20th day of December, 1918, convicting Mm of the crimes of rape in the second degree, abduction and assault in the second degree, and also from an order entered in said clerk’s office on the 13th day of March, 1917, denying his motion for a new trial upon the ground of newly-discovered evidence.

Appeal by the Long Island Railroad Company from an order and determination of the Public Service Commission of the State of New York for the First District, made on the 27th day of August, 1918.

<p>Appeal by Augusta Ambs, contestant, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 11th day of April, 1919, construing the will of Louisa Schulz, deceased.</p>

Appeal by the petitioner, Charles Woods, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 26th day of May, 1919, denying probate to the alleged will herein after a jury trial. An appeal is also taken from the order of said Surrogate’s Court entered in the office thereof on the same day, denying petitioner’s motion for a new trial.

Appeal by the defendant, Holbrook, Cabot & Rollins Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of March, 1917, denying defendant’s motion to compel plaintiff separately to state and number her causes of action, or, in the alternative, to strike out certain allegations of the complaint.

Appeal by the defendant, Occidental Trading Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of April, 1919, denying the motion of the defendant appearing specially to vacate and set aside the service of the summons herein, and also to vacate and set aside the claimed levy under the warrant of attachment.

Appeal by the defendant, Robert Ludlow Fowler, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of June, 1919, granting relator’s motion for a peremptory writ of mandamus.

Appeal by the defendant, The Maze Realty Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of June, 1919, appointing a referee to determine the reasonable value of the legal services rendered to the plaintiff in this action.

Appeal by the defendant, The Maze Realty Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of June, 1919, appointing a referee to determine the reasonable value of the legal services rendered to the plaintiff in this action.

Appeal by the claimant, The Frisbie & Stansfield Knitting Company, Inc., from a judgment of the Court of Claims in favor of the defendant, entered in the office of the clerk of said court on the 27th day of June, 1918, dismissing the claim herein, and also from an order entered in the office of the clerk of said court on the 24th day of June, 1918, directing the dismissal of the claim.

Appeal by the defendant, Asher P. Melen, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 2d day of May, 1919, overruling the demurrer interposed by the defendant to the complaint.

<p>Appeal in both actions by the defendant, Frederick W. Clark, from judgments of the Supreme Court in favor of the plaintiffs, Walter A. Ward in the first action and Lucy P. Ward in the second action, entered in the office of the clerk .of the county of Monroe on the 17th day of May, 1919, upon the verdict of á jury for $350 in the first action and for $1,000 in the second action, and also from orders entered in said clerk’s office on the same day denying defendant’s motion in each action for a new trial made upon the minutes.</p>

<p>Tax — street railroads — franchise tax upon leased railroad not operated by lessee — operation of railroad by receiver appointed on foreclosure — Tax Law, section 185, construed.</p> <p>Section 185 of the Tax Law, imposing a franchise tax of one per cent upon the gross earnings of elevated or surface railroads not operated by steam, and three per cent upon dividends declared in excess of four per cent, and further providing that such railroad corporations as were leased to other railroad corporations shall only be required to pay a tax of three per cent upon dividends in excess of four per cent, intended to divide such railroads into two classes, first, those engaged in the actual operation of such railroads, and second, those not engaged in the actual operation but whose property is operated by another railroad corporation under a lease.</p> <p>Thus, although the property of a street railroad company in the city of New York was leased to another railroad company and both companies were insolvent and in the hands of- receivers, the leased company will be required to pay the franchise tax of one per cent on the gross earnings received by the receiver where its properties were not in fact operated by the receiver of the lessee but by the receiver of the lessor appointed on a mortgage foreclosure and who received the earnings.</p> <p>The amendment to section 185 of the Tax Law made by chapter 710 of the Laws of 1917 in effect made clear the intent of the Legislature that the tax upon the gross earnings was to be paid by the corporation or its representative engaged in the actual operation of the railroad.</p> <p>Under the circumstances aforesaid the lease of the railroad to another company was ineffectual to relieve the lessor from the payment of the tax during such period as the lessee did not exercise the corporate franchise or operate the leased railroad.</p>

<p>Workmen’s Compensation Law — injury to employee of railroad while cutting timber — intended use of timber to repair car used in interstate commerce — burden of proof — when award under State law proper — award against railroad company rather than Director General — practice — reopening claim and increasing award.</p> <p>A millwright employed by a railroad company who was injured while ripping a piece of timber for the alleged purpose of using the same to repair a caboose used in interstate commerce is prima facie entitled to receive an award under the Workmen’s Compensation Law, it appearing that the work was never completed and that there is no evidence that the piece of timber was used to repair said caboose.</p> <p>It is presumed that the case comes within the Workmen’s Compensation Law in the absence of substantial evidence to the contrary.</p> <p>The lumber which the claimant was ripping cannot be said to be an instrumentality of interstate commerce until it was at least on its way to be incorporated in the car or was being placed therein.</p> <p>As the use of the plank was within the knowledge of the employer, the burden was on it to prove the actual application thereof.</p> <p>It seems, that if the employee had been injured while putting the piece of timber into the caboose a different question would be presented.</p> <p>The award is properly made against the railroad company instead of against the Director General thereof, especially where the company describes itself as the employer in the report of the injury filed with the State Industrial Commission.</p> <p>The Commission has power to reopen a claim and make a larger award, especially where the previous award was for an incorrect amount.</p>

<p>Appeal by the defendant, The State of New York, from an order and judgment of the Court of Claims in favor of the plaintiff, entered in the office of the clerk of said court on the 13th day of February, 1919.</p>

<p>Appeal by Merton E. Lewis, as Attorney-General, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of said county on the 7th day of April, 1919, denying the petitioner’s application for leave to begin an action to vacate the charter and annul the corporate existence of the Harlem Dental Company.</p>

<p>Appeal by the defendant, The City of New York, from an award of the State Industrial Commission, entered in the office of said Commission on the 23d day of April, 1919.</p>

Appeal by the defendants, American Body Company and another, from a decision and award of the State Industrial Commission made on the 15th day of November, 1918.

<p>Workmen’s Compensation Law — computation of earnings of employee who works only five days a week.</p> <p>Where a claimant under the Workmen’s Compensation Law did not work regularly more than five days a week, the method of calculating his earnings given under subdivisions 1 and 2 of section 14 of the statute cannot “ reasonably and fairly be applied.” Under such circumstances the provisions of subdivisions 3 and 4 of said section, which require that the sum which “ shall reasonably represent the annual earning capacity” shall be taken as a basis and divided by fifty-two to determine the average weekly wages, become applicable.</p> <p>Thus where the earnings of such employee, who worked only five days a week, amounted to a certain annual sum, including a bonus, his weekly wage should be determined by dividing said sum by fifty-two, and the award for the loss of a hand should be computed as two-thirds thereof per week for two hundred and forty-four weeks.</p>

<p>Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of Yates, dated December 20, 1918, modifying a pro forma order fixing the transfer tax herein.</p>

<p>Appeal by the City of New York from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of said county on the 19th day of February, 1918, confirming the majority report and award to the E. I. duPont deNemours Powder Company, made by Business Damage Commission No. 3.</p> <p>Appeal by the claimant, E. I. duPont deNemours Powder Company, from so much of said order as denies the claimant’s motion for an allowance for counsel fees and for expenses of witnesses and interest upon the award.</p>

Appeal by the defendants, A. M. Oesterheld & Son and another, from a decision and award of the State Industrial Commission, entered in the office of said Commission on the 3d day of February, 1919.

Appeal by the defendants, Charles E. Bowman and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 19th day of February, 1919.

<p>Workmen’s Compensation Law — death in course of employment — helper on motor truck killed by automobile while passing from truck to bakery to buy necessary food for himself.</p> <p>An employee made a trip upon a motor truck, as a helper to a chauffeur, to deliver a load of lumber for his employer, and left the plant at about eleven-thirty a. m. without having eaten .any lunch, owing to the fact that he had not brought one with him, the day being Saturday and his work as a rule ending at twelve o’clock, and he being without funds till just before the truck started, when he received his weekly pay. On the return trip the chauffeur stopped the truck opposite a bakery at about four p. m., and the helper in crossing the street to purchase some food which he intended to carry back to the truck and eat on his way home, was run over by an automobile and killed.</p> <p>Held, that the helper was engaged in his master’s work at the time of the accident and that his death occurred in the course of his employment.</p>

<p>Public officers — removal — certiorari to review — removal under statute not requiring hearing — removal under statute requiring hearing-—-removal without hearing under statute requiring trial erroneous as matter of law — power to “summarily hear, try and determine ” charges against police officer and to remove — necessity for trial in usual form — removal only permitted for cause shown and heard.</p> <p>Where a statute makes no provision for a hearing, but confers the power of removal of an officer, subject to no limitation except the requirement that the reasons therefor be stated in writing and filed and an opportunity for explanation given, the act of removal is executive and is not reviewable on certiorari.</p> <p>When by statute, or by implication of law, the power of removal of a public officer can be exercised only for cause or after a hearing, the proceeding is judicial in its nature and is subject to review by certiorari.</p> <p>Where a person is protected in the enjoyment of a public office or employment from removal except for cause, to be ascertained and adjudged upon a hearing of a judicial nature, and it appears that he was removed without any proof of the necessary facts upon oath, the determination, if not absolutely without jurisdiction, is clearly erroneous as a matter of law. Where the mayor of a city is given power, “ summarily, to hear, try and determine any complaint of misconduct ” against a police officer and to remove such officer when found to be incompetent, there must be a trial in the usual form of law upon evidence given publicly, under the sanction of an oath.</p> <p>Where a police officer can be removed only after charges preferred and heard the cause of removal must be confined to the charge shown and heard.</p>

Appeal by the defendants, R. H. Howes Construction Company and another, from an award of the State Industrial Commission, entered in the office of said'Commission on the 14th day of March, 1919.

Appeal by the plaintiff, Albert F. Wilson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Broome on the 3d day of June, 1919, dismissing the complaint, with notice of an intention to bring up for review on said appeal an order of said court entered in said clerk’s office on the 30th day of January, 1919, denying plaintiff’s motion for judgment on the pleadings, and also the interlocutory judgment of said…

<p>Appeal by the defendant, Joseph Segal, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 1st day of March, 1919, upon the verdict of a jury rendered by direction of the court, certain specific questions having been submitted to the jury, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a nonsuit and directing a general verdict in favor of the plaintiff, and also from so much of an order entered in said clerk’s office on the 6th day of March, 1919, as denies defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Holbrook, Cabot & Rollins Corporation, from a decision and award of the State Industrial Commission, made on the 11th day of April, 1919, and also from a decision and award made on the 17th day of April, 1918.

Appeal by the defendants, Brady & Gioe and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 7th day of April, 1919.

Appeal by the defendants, Sherwood Metal Working Company and another, from an award of the State Industrial Commission, entered in the Syracuse office of said Commission on the 27th day of May, 1919.

<p>Workmen’s Compensation Law — necessity that disease naturally and unavoidably result from injury — evidence insufficient to sustain award for hernia.</p> <p>An award under the Workmen’s Compensation Law for a right inguinal hernia cannot be sustained where there is no evidence of anything in the nature of an accident and no attempt to establish that the claimant did not have a hernia prior to the day on which he claims to have received the injury, and the only evidence to support the award is that “ while engaged in the regular course of his employment ” and “ while pushing a pipe about fourteen feet long ” the claimant “ felt a severe pain in the right side ” and that on the following day a physician “ diagnosed his injury as a right inguinal hernia (traumatic),” for, as the evidence stands, there is nothing to show any connection between the hernia and the severe pain in the right side of the claimant, or that the hernia could have been produced by anything which was shown to have occurred on the day of the alleged accident.</p> <p>The Workmen’s Compensation Law does not insure against disease except where the disease or infection naturally and unavoidably results from an injury.</p> <p>John M. Kellogg, P. J., dissented.</p>

<p>Workmen’s Compensation Law — injury received while eating in lunch room furnished by employer — death caused by falling down elevator shaft from room to which decedent went to rest during lunch hour.</p> <p>Injury or death received by an employee while eating his lunch in a room furnished by his employer for that purpose will be deemed to have occurred in the course of his employment.</p> <p>Where it appears that the decedent, who was employed as a eellarman in a brewery, after eating his lunch in an adjoining room, went to the ground floor to walk about and get the fresh air as was customary with the employees, and as he was expected to do by his employers, and that while . there he accidentally fell down an elevator shaft and was killed, his death will be deemed to have occurred in the course of his employment.</p>

Appeal by Mead V. Z. Belden and James Jerome Belden, individually and as executors, etc., of James M. Belden, deceased, and others, from an order of the Surrogate’s Court of the county of Onondaga, entered in the office of said Surrogate’s Court on the 10th day of July, 1919, affirming a prior order fixing the transfer tax on the estate of James M. Belden, deceased.

<p>State — liability of State for damages to owner of hydraulic power caused by construction of Barge canal — claim of title by State to lands upon which claimant intends to erect new structure — failure of claimant to erect structure until question of title determined.</p> <p>Where a contractor constructing the Barge canal under the direction of the State tore out a conduit passing under the old canal and used by a gas and electric company in connection with its hydraulic power plant, and also destroyed the company’s forebay and built a wall upon its lands, the Court of Claims properly made an award for the resulting damage.</p> <p>Where the State required the contractor to put a new conduit under the new canal for use by the lighting company the damages of the latter for the interrupted use of its water power should not be limited to the reasonable time within which said company could have constructed a new forebay necessitated by the change in the canal, if in fact the State laid claim of title to the land upon which the company intended to construct its forebay under a claim of ownership. The lighting company was not bound to go to the expense of building a new forebay upon lands claimed by the State in order to reduce the damages caused by the State’s wrongful act until such time as the question of title was judicially determined by the Court of Claims.</p>

<p>Appeal by the defendant, Arthur Lederer, from an award of the State Industrial Commission, entered in the office of said Commission on or about the 11th day of March, 1919, and also from an award of said Commission entered in the office of said Commission on or about the 21st day of December, 1918.</p>

Appeal by the defendants, H. J. Bartle Manufacturing Corporation and another, from a decision and award of the State Industrial Commission, entered in the office of said Commission on or about the 25th day of February, 1919.

<p>Appeal by the defendant, Robert Black, from an order of the Supreme Court, made at the Washington Special Term, and entered in the office of the clerk of said county on the 27th day of November, 1918, overruling the preliminary objections raised by the defendant and overruling the demurrer to the amended complaint and granting judgment in favor of the plaintiff on the pleadings.</p>

Appeal by the defendant, Harry L. Spatz, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of said county on the 5th day of May, 1919, granting the plaintiff alimony and counsel fees, and also from an order entered in said clerk’s office on the 26th day of May, 1919, denying defendant’s motion to resettle the aforesaid order.

<p>Public officers — liability for public money in their possession — liability of warden of city workhouse for money of inmates deposited with him and stolen by subordinate.</p> <p>A public officer having the custody of pubHe money is Hable for the loss thereof, although occurring without his fault or neghgence.</p> <p>The warden of the city workhouse of the city of New York, charged by the rules and regulations of the department of correction, which have the force and effect of statutes, with responsibiHty for the proper care and dehvery of money of inmates “ required ” to be deposited with him, and also charged with responsibiHty for the conduct of his subordinates, is, together with his bondsmen, Hable to the city of New York for moneys so deposited with him by inmates and subsequently stolen by a subordinate appointed by him, as moneys so taken and held become of the nature of public moneys so as to render the doctrine 'of absolute responsibiHty therefor appHcable.</p> <p>Merbell and Dowling, JJ., dissented, with opinion.</p>

Appeal by the defendant, Frederick C. Claessens, as administrator, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Rensselaer on the 4th day of February, 1919, and also from an order of the Supreme Court made at the Rensselaer Special Term and entered in the office of the clerk of the said county on the 11th day of April, 1919, denying defendant’s motion to set aside the judgment and to grant a reargument.

Appeal by the defendant, Anna C. Farrell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of May, 1919, upon the decision of the court after a trial at the Kings County Special Term sustaining plaintiff’s mechanic’s lien for $250 with interest and costs, and awarding a personal judgment against the appellant.

<p>Appeal by the defendant, Joseph Kapitola, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of February, 1919, upon the decision of the court after a trial at the New York Special Term, and also from an order entered in said clerk’s office on the 28th day of February, 1919, denying defendant’s motion for a new trial upon the ground of newly-discovered evidence.</p>

<p>Libel — trial — statements of judge in presence of jury suggesting reconciliation and that plaintiff was not seeking damage but vindication as prejudicial error — evidence — cross-examination to show that plaintiff had little regard for feelings of his friends — damages — article libelous per se — right to recover punitive where actual damage not shown — pleading — necessity that privilege be pleaded — malice — evidence — admissibility in evidence of general and continued attacks on organization of which plaintiff was officer.</p> <p>In an action by an actor against a newspaper to recover damages for libel, it is prejudicial error, demanding a reversal of a judgment in favor of the defendant, for the trial judge to suggest, in the presence of the jury, that the defendant’s president shake hands with the plaintiff, tell him he was sorry for the publication and make a retraction thereof, and to comment upon the liberality and good fellowship of the theatrical profession and to state that the plaintiff was not seeking mere damages but vindication for his feelings, and to permit the defendant’s attorney during the discussion to state that the plaintiff never would have brought the suit except to recover his attorney’s fees, for the jury could only have gathered from the comments and discussion the impression that the plaintiff’s grievance was trivial and that he had sustained no damages whatever, if he had any cause of action at all.</p> <p>It was error for the trial court to permit the plaintiff to be cross-examined at great length on the use of the names of his friends and associates as characters in what was denominated a “ crook ” play, for the sole purpose of showing that the plaintiff had but little regard for the feelings of his friends.</p> <p>Punitive damages may be recovered in an action to recover for the publication of an article which is libelous per se, although actual damages have not been shown.</p> <p>The question of privilege should not be submitted to the jury in an action against a newspaper to recover damages for the publication of a libelous article, where it was not pleaded nor raised upon the trial in any proper manner.</p> <p>In an action by an actor to recover damages for the publication of a libelous article in the defendant’s newspaper, evidence is not admissible, on the question of express malice, tending to show a general abuse of an organization of actors known as the “ White Rats ” of which the plaintiff was an officer.</p> <p>But if the plaintiff could show that the defendant knew of plaintiff’s activities as an officer of the organization, and that the defendant’s hostility to that organization extended to the plaintiff personally, evidence of articles published in defendant’s paper which attacked the officers of the organization in a body, even if plaintiff’s name was not specifically mentioned, would be admissible.</p> <p>Or if the plaintiff could show that the defendant’s president who was responsible for the publication of the libelous article, had announced a policy of destroying the reputation of the officials of that organization, and that he knew that plaintiff was one of such officials, evidence of general attacks on the organization and its officers would be admissible on the question of malice.</p>

Appeal by the defendants, Universal Film Manufacturing Company and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of March, 1919, upon the decision of the court after a trial at the New York Special Term. The judgment granted an injunction and directed an assessment of damages by a jury at plaintiff’s request as a matter of right.

Appeal by the contestant, George B. Marshall, from so much of a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 26th day of March, 1918, as allows the costs and disbursements herein to the unsuccessful proponent and further allows him a counsel fee of $2,500 payable out of the estate.

Appeal by the plaintiff, Lord Electric Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of August, 1919, framing for trial by a jury certain issues raised by the counterclaim of the respondent, and the plaintiff’s reply thereto.

Appeal by the plaintiff, Louisa Gewirtz, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of August, 1919, denying her motion to punish the defendant for contempt of court in failing to pay certain alimony.

<p>Appeal by the plaintiff, Mollie Goldenberg, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 18th day of December, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of December, 1918, denying plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Stanley Grzeczezak, a judgment debtor, from an order of the County Court of Nassau county, entered in the office of the clerk of said county on the 13th day of June, 1919, adjudging him guilty of contempt of court in having willfully disobeyed an order for his examination in supplementary proceedings and fining him the amount of the judgment and thirty dollars costs of the contempt proceedings.

<p>Appeal by the plaintiff, Gustaf Anderson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kangs on the 1st day of March, 1919, as amended and corrected by an order entered in said clerk’s office on the 7th day of April, 1919,</p> <p>The judgment was entered upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.</p>

<p>Appeal by the defendants, Daniel Caton, individually, and as president, etc., and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of June, 1919, continuing, pendente lite, an injunction which was originally granted ex parte on May 7, 1919, and which restrained the defendants from practicing any discrimination against the plaintiff in the receipt or delivery of freight and merchandise trucked by plaintiff.</p> <p>The controversy which is the subject of this litigation took place in the latter part of the year 1918 and the first three months of the year 1919.</p> <p>The plaintiff corporation conducts an extensive public trucking business in the city of New York. Its business consists mainly in trucking freight for its customers to and from the various railroad and steamship terminals and docks. The complaint alleges that plaintiff's investment exceeds $500,000, and the gross annual income of the business is at least $1,500,000. The defendants are unincorporated labor unions and individual officers and members thereof. The defendant Transportation Trades Council of the Port of New York is an organization of representatives of local unions affiliated with the American Federation of Labor in the transportation trades.</p> <p>The other defendant unions are composed of workingmen engaged on the steamship piers and in driving trucks to and from the piers, each different department of the work having a separate union, as, for example, the steamship clerks, the checkers, the scalemen, the weighers, the pier employees, and the truck drivers and chauffeurs, organized in separate locals. It is alleged in the answers interposed and the replying affidavits read on the motion, that in the year 1918 the local unions in and about the port of New York comprised from 100,000 to 125,000 men, about ninety per cent of all the men engaged in such work.</p> <p>The plaintiff conducts its business on what is known as the “ open shop ” basis. It employs drivers, chauffeurs and truck-men some of whom belong to one or another of the various local unions, and some who are not members of the labor unions. In the early part of the year 1919 the various local unions voted upon and adopted certain resolutions looking to the unionizing of the entire body of men engaged in this class of work. It is alleged that as a result of earlier unionizing movements the wages of the men were steadily increased, and the standard of an eight-hour working day had been generally adopted, and that over seventy-five per cent of the employers of labor had voluntarily adopted the union scale of wages and hours of work and employed only union men. It is alleged in the pleadings and affidavits used upon the motion that the plaintiff corporation and another trucking concern known as Daniels & Kennedy, refuse to join with the other employers in unionizing their men, and, while paying the same weekly rate of wages, insist upon a ten-hour working day, instead of an eight-hour day, paying but fifty cents an hour for overtime instead of one dollar per hour as demanded by the defendants. To bring about a uniform rate of wages and hours of work by means of unionizing the entire laboring force, the various local unions and their members resolved that members of the unions should not continue to work with non-union men, and • accordingly would refuse to handle merchandise brought to the piers, or called for at the piers by drivers, chauffeurs and truckmen who were not members of the union. Unsuccessful efforts were made to negotiate settlements with the plaintiff and the Daniels & Kennedy trucking concern, the plaintiff refusing to become a party to the agreement, with the result that in the latter part of April the union men working as dock foremen, clerks, weighers, checkers, etc., refused to handle freight brought to the piers by plaintiff’s trucks driven by nonunion men. There was no refusal to handle such freight when plaintiff’s trucks were driven by employees who were members of the union. The defendants, disclaiming any malice towards the plaintiff, insist that the primary object of their refusal to deal with plaintiff’s non-union employees was to better the condition of the laborers generally as to wages and working hours, and the main grievance of the defendants, as alleged, is the refusal of plaintiff to conform to the eight-hour day condition and the payment of one dollar per hour for overtime. The plaintiff alleges, however, that the demands of the laborers and their organization were arbitrary, onerous, unbearable and ruinous, and that plaintiff declined and refused to sign the agreement, which it insists it had the right to do. The result of the refusal of the union men to work with the plaintiff’s non-union employees, maintained for some two weeks, seriously interfered with plaintiff’s business. Plaintiff was obliged to take back freight which the union men refused to handle, or transfer it to other trucks operated by union men. Shippers and receivers of freight formerly employing plaintiff’s trucks threatened to and in some cases did transfer their business to other trucking concerns, and plaintiff alleges that it is unable to carry on its business and that it has suffered and will suffer irreparable loss and damage.</p> <p>This action was accordingly commenced on May. 6, 1919, and a preliminary injunction obtained ex parte, restraining defendants from “ practicing any discrimination against the plaintiff or its agents, servants, employees or trucks or against any through freight, local freight, incoming freight, outgoing freight or export freight, or merchandise, trucked by the plaintiff or its agents, servants or employees or tendered by them, or either of them, for shipment or carriage by any carrier by rail or water or intended for delivery to or carriage by the plaintiff or its agents, servants, employees or trucks.” An order was directed to defendants to show cause why this injunction should not be continued during the pendency of the action, on the return of which, after hearing, the learned judge at Special Term granted the plaintiff’s application. It is from this order that the appeal is taken.</p>

Appeal by the defendants, International Mercantile Marine Company and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of June, 1919, granting plaintiff’s motion for an injunction pendente lite.

<p>Appeal by the defendant, The City of Fulton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 3d day of December, 1917, upon the report of a referee appointed to hear and determine the issues.</p> <p>An appeal is also taken, as stated in the notice of appeal, from the findings, conclusions and decision of the referee.</p>

<p>Mortgage — foreclosure — judgment for deficiency — rent due from mortgagee as tenant in possession — equitable lien.</p> <p>Where a mortgagor leased the mortgaged premises to the mortgagee who went into possession and the mortgagor thereafter conveyed and became insolvent, the mortgagee on foreclosure is entitled to have the rent in the hands of the receiver applied upon the judgment for deficiency, even though the moneys represent rent due before the commencement of the foreclosure, the mortgagor being in default before said rent became due. The mortgagee did not forfeit its equitable lien on the rent because it refused to pay the same on demand of the owner of the equity of redemption, but continued to occupy the premises without beginning a suit for foreclosure.</p>

<p>Poor Law — revival of distinction between town and county poor — when city liable for necessaries ordered for its poor.</p> <p>Where the distinction between the town and county poor in the county of Herkimer was abolished by the board of supervisors, but was thereafter revived by said board, pursuant to section 138 of the Poor Law, the city of Little Falls, which under its charter is deemed to be a town within the general laws relating to the poor, is liable to a merchant for goods furnished to a poor person who is a resident of said city even though during the time the distinction between town and county poor had been abolished the county had been solely liable for such necessaries.</p>

Appeal by the plaintiff, Alice Kovarik, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 27th day of November, 1918, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

<p>Costs — action to foreclose mechanic’s lien — offer of judgment by one defendant — judgment in favor of plaintiff for less amount — costs against defendant.</p> <p>In an action against the owner of land and the principal contractor to foreclose a mechanic’s lien, an offer of judgment by one defendant for a greater amount than was actually recovered does not operate under section 738 of the Code of Civil Procedure to throw the costs, as to that defendant, upon the plaintiff, for the action is not capable of severance between the two defendants, so as to permit the entry of separate judgments, which is required by said section of the Code in order to throw the costs upon the plaintiff.</p> <p>And even though under the offer of judgment a severance of the action might be had to permit the plaintiff to recover a personal judgment against the defendant making the offer, still the defendant would not be entitled to costs.</p>

Appeal by the defendant, South Shore Growers and Shippers Association, from a judgment of the County Court of Chautauqua county in favor of the plaintiff, entered in the office of the clerk of said county upon the decision of the court after a trial before the court without a jury.

<p>Gas and electricity — public service corporation — discrimination between those having connections and those not having connections — power to limit use of natural gas and to discriminate between domestic and industrial users.</p> <p>The Public" Service Commission has no power, in order to conserve the supply of natural gas, to make an order discriminating in favor of those who have gas connections and against those who have not, but need gas, nor has the gas company itself the right to make such discrimination.</p> <p>Public service corporations are prohibited by section 65, subdivision 3, of the Public Service Commissions Law, from giving any undue or unreasonable preference or advantage to any person or locality, or to any particular description of service, or to subject any one, or any particular description of service, to undue or unreasonable prejudice or disadvantage. It seems, that the Public Service Commission has the power in order to conserve the supply of natural gas to limit the supply to consumers and give preference to domestic purposes over industrial uses, or the gas company itself may do so in the absence of any such rule by the Commission.</p> <p>Foote, J., dissented.</p>

Appeal in the first action by the defendant, The New York Central Mutual Fire Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 22d day of November, 1918, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Powers Film Products, Inc., from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 1st day of October, 1919, denying defendant’s motion for judgment on the pleadings.

Appeal by the plaintiff, Flora MacDonald White, from two orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of April, 1919, denying plaintiff’s separate motions for judgment on the pleadings, consisting of the amended complaint and demurrers thereto.

<p>Appeal by the defendant, Ernest M. Turner, from a judgment of the Supreme Court in favor of the plaintiff, entered</p>

<p>Sales — contract to manufacture and sell and to deliver in monthly installments within one year — stipulation that deliveries begin on completion of plant as limiting absolute obligation to complete deliveries within one year — evidence — admissibility of commercial paper to establish market price.</p> <p>Under a contract to manufacture and sell a certain definite quantity of material providing that the shipments are to be made in approximate equal monthly quantities over the year, and that the first shipment is to be made on the completion and operation of the plant “ which we expect will be in February, 1916,” there is an absolute obligation to deliver the quantity specified within the year, and for a failure to do so, whether or not due diligence has been exercised in the completion of the plant, the defendant is liable.</p> <p>The provision that the monthly shipments should not begin until the completion of the plant did not in any way affect the absolute obligation to deliver the full amount within the year.</p> <p>In an action for a breach of contract for failure to deliver merchandise which has no fixed market value, a commercial paper which purports to give the sales and quotations of such merchandise may be introduced in evidence, if the preliminary proof establishes to the satisfaction of the court the reliability of the paper.</p>

Appeal by the defendants, The Erie Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 29th day of April, 1919, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 26th day of March, 1919, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Fred H. Greenebaum, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 19th day of December, 1918, granting plaintiff’s motion to set aside the verdict and for a new trial made upon the minutes on the ground that the verdict was against the weight of evidence.

Appeal by Minerva L. Sheedy, petitioner, from a decree of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said court on or about the 12th day of May, 1919, denying to the said Minerva L. Sheedy letters of administration upon the estate of Thomas F. Sheedy upon the ground that she was not the widow of the said Thomas F. Sheedy.

Appeal by the plaintiff, Sady Busacca, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 23d day of April, 1919, granting defendant’s motion to set aside a verdict in plaintiff’s favor for $1,350, and for a new trial made upon the minutes.

<p>Carriers — validity and effect of unfiled Canadian bill of lading under which silver ore was shipped from Canada to United States — liability of connecting carrier for theft of silver nuggets from car which had been left on siding en route at a point in the United States for the accommodation of the shipper and subsequently accepted by the carrier after said nuggets had been separated from the ore — application of provisions of uniform bill of lading relieving carrier from liability — delivery by and redelivery to carrier en route under through bill of lading.</p> <p>In an action to recover for the loss of freight which was shipped from a point in Canada on a Canadian bill of lading to a point in the United States, the provisions of the Canadian bill of lading with respect to classification and rates in so far as they purport to limit the liability of the carrier are void if the classification and rates have not been filed with and approved by the Canadian Board of Railway Commissioners and filed with our Interstate Commerce Commission.</p> <p>The provisions of a Canadian bill of lading on a shipment of freight from Canada to a point in the United States are inoperative after the shipment passes the international line and from that point the uniform classification prescribed by our Interstate Commerce Commission and the tariff filed by the connecting carrier thereunder attach and govern the liability of the connecting carrier for any loss of freight occurring thereafter.</p> <p>The plaintiff’s assignor shipped a carload of silver ore from Cobalt, Canada, on a through bill of lading consigned to the American Smelting and Refining Company at Perth Amboy, N. J. There was in the body of the shipping order and of the bill of lading a typewritten notation as follows: “ To be stopped off at Bergen Jet. for sampling at Ledoux & Co. works.” The car was received by defendant at Suspension Bridge, Niagara Falls, N. Y., and arrived over its railroad at Bergen Junction and was left by the defendant opposite a freight platform of Ledoux & Co.’s sampling works. It was there sampled and in the process of doing so the ore was crashed and silver metallics or nuggets averaging about eighty per cent silver were screened out, but the process involved no smelting or refining and the original condition of the ore was not otherwise changed. The ear was reloaded and the silver nuggets were placed in separate bags. After the defendant’s agent inspected and sealed the oar and signed a receipt therefor, including the silver nuggets, the car was broken open and the nuggets stolen therefrom. Under the circumstances the ear and the ore were in the possession of the defendant, as a common carrier, at the time of the theft.</p> <p>The provisions of the uniform bill of lading approved by and filed with the Interstate Commerce Commission govern the shipment although the defendant did not issue or deliver to the shipper any bill of lading.</p> <p>The uniform bill of lading has no application to an intrastate shipment.</p> <p>Sections 5 and 6 of the uniform bill of lading relieve a carrier from liability for the theft of freight from a car while standing on a siding awaiting shipment at the initial point or awaiting delivery at the point of destination.</p> <p>As the shipment of ore was made on a through bill of lading there could not be a lawful delivery by and redelivery to the carrier en route.</p> <p>Therefore, the defendant was not entitled to the benefit of said sections of the uniform bill of lading as to the ear which was temporarily left on a siding of the carrier en route solely for the accommodation of the shipper, for such special accommodation to the shipper, was not provided for or authorized by the uniform bill of lading and it was, therefore, unlawful and not binding on the carrier.</p> <p>Even though in this case the carrier may have been relieved of liability while the ore was in the possession of the person to whom it was delivered for sampling, it resumed possession as a carrier when its representative sealed the ear into which the ore had been reloaded and delivered a receipt therefor to the sampler.</p> <p>Since the shipper did not sign the release clause indorsed on the bill of lading, he was not entitled to the reduced rate applicable thereto, and the liability of the defendant is not affected by its failure to exact the same rate from the initial point of shipping as was exacted for its benefit by the final carrier from Bergen Junction, the point where the loss occurred, to Perth Amboy.</p> <p>The separation of the silver nuggets from the ore and placing them in the car did not constitute a fraud on the defendant releasing it from liability for the loss of said nuggets, for the defendant consented to the removal of the ore from the ear for the purpose of sampling and the evidence shows that it was well informed of the process of sampling and knew that in that process the nuggets would be separated from -the ore.</p> <p>Moreover, the carrier cannot defend on this ground inasmuch as the separation of the ore was made pursuant to a special privilege accorded the shipper in violation of law.</p> <p>And furthermore the carrier is bound by the knowledge acquired by its agent when he receipted for the ore by a receipt reciting with substantial accuracy the contents of the ear which receipt showed the presence of the silver nuggets in the car in separate bags.</p> <p>The defendant is not relieved from liability for the theft of the nuggets on the ground that they were of extraordinary value and were not specifically rated in the published classification or tariff and that there was no special agreement that the defendant should be liable therefor or stipulated value of the articles indorsed on the bill of lading as provided in section 6 of the uniform bill of lading, for if, by the changes made in sampling the ore, part of it came within section 6 of the uniform bill of lading it was the direct result of the defendant’s violation of the statute and presumably was contemplated and it cannot be heard to complain. And furthermore, the evidence did not show that the said nuggets, even though they had been shipped as such from the initial point of shipment, would have constituted articles of extraordinary value within the provisions of section 6 aforesaid.</p>

<p>Sales — resale — whether resale made within reasonable time question for jury — sale of goods to be manufactured — repudiation by vendee — measure of damages — contract evidenced by correspondence — intention of parties as question for jury — admissibility of parol evidence to show intention of parties.</p> <p>Where the defendants refused to receive goods ordered by them from the plaintiffs prior to the close of war activities, and it appears that owing to the signing of the armistice the price of the goods dropped and the plaintiffs held them awaiting better prices before disposing, of them as agents of the defendants, the question whether the plaintiffs exercised reasonable care and judgment in mating the resale within the meaning of subdivision 5 of section 141 of the Personal Property Law is a question of fact for the jury.</p> <p>In an action by a vendor for repudiation of a contract for the sale of goods to be manufactured, his damages are the difference between the contract price to be paid by the vendee and what it would have cost him to perform. Accordingly where a contract for the sale of goods to be manufactured in North Carolina provided for delivery to the vendee at New York city, while the delivery to the vendor from the manufacturer was to be made at the mill in North Carolina, the damages which the vendor may recover are to be determined by the difference between the price of the goods at the mill plus the cost of freight to New York, and the price stipulated to be paid by the vendee, and the burden is on the vendor to show the amount of the freight charges.</p> <p>Where a contract is evidenced by correspondence, and different inferences may be drawn therefrom, the intention of the parties becomes a question of fact for the jury, and where there is any uncertainty in the contract, the meaning and intention of the parties may be shown by parol.</p>

<p>Appeal by the plaintiff, Norabelle Parker, from ah order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of July, 1919, denying her motion for an order directing the entry of a judgment in her favor for accrued alimony and for counsel fees on said motion, and also from an order of the said court entered in said clerk’s office on the same day denying plaintiff’s motion for an increase of alimony and for an allowance of counsel fee's on said motion, and also from an order of said court entered in said clerk’s office on the same day denying plaintiff’s motion for an order vacating, setting aside and annulling an alleged decree of divorce dated April 23, 1901.</p>

Appeal by the defendants, Joseph Brewster and another, as administrators, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 11th day of June, 1919, affirming an order of the City Court of the City of New York, entered in the office of the clerk of the said court on the 13th day of May, 1919, granting plaintiff’s motion for judgment on the pleadings.

Appeal by the defendants, Franco-American Chemical Company, Inc., and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of March, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on or about the 10th day of April, 1919, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Jane Leonard and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of January, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of January, 1919, denying defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendant, American Steel Foundries, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of November, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by William E. Benjamin, third party, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of October, 1919, denying bis motion to vacate the order for his examination in third party proceedings supplementary to execution.

<p>Appeal by the defendant, Chicago, Burlington and Quincy Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of May, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on .the same day denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Surrogate’s Court — judgment against administrator — motion for leave to issue execution—when determination as to assets of estate prerequisite.</p> <p>Where on an application to the Surrogate’s Court for leave to issue execution on a judgment against an administrator it is merely shown that bis petition for letters of administration stated that the estate consisted of specified amounts of real and personal property at the time of his appointment, but there is no proof that he was in possession of any assets when the application was made and, on the contrary, there is no answer to his affidavit alleging that he had parted with all the assets and claimed to own personally part of the property listed as belonging to the estate, the leave to issue execution should not be granted, for an issue is presented which requires proof to be taken by the surrogate through an intermediate accounting as to what assets, if any, still remain in the hands of the administrator and the proper charges against the same.</p> <p>Such application, it seems, will be granted not only if the adminstrator has assets on hand belonging to the estate but also if he has misapplied any of the funds applicable to the payment of the judgment.</p>

Appeal by Thomas E. Loughlin, as administrator, etc., from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 22d day of August, 1919, denying a motion for the reopening of the decision of the surrogate of the county of New York granting the application of said Amelia S. Lansing for leave to issue execution against Thomas E. Loughlin, as administrator, etc., of Ellen Loughlin, deceased, and for a reargument…

Appeal by the defendant, New York Railways Company, fj’om a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of March, 1919, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 17th day of March, 1919, denying defendant’s motion for a new trial made upon the minutes as resettled by an order entered on the 15th day of April, 1919.

<p>Appeal by Mary Minihan and another from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on or about the 26th day of February, 1919, granting a motion made by the proponents to set aside as contrary to the evidence the verdict of a jury that deceased was not possessed of testamentary capacity when the alleged will was made, and granting a new trial.</p>

<p>Attorneys — substitution — necessity for order of court where no proceeding pending — validity of percentage contract — right of attorney dismissed after close of proceeding to recover on contract — right to hearing on question whether fraud of attorney vitiated contract.</p> <p>A client has the absolute right to charge his attorney at any time.</p> <p>Unless there be some action or proceeding pending in the courts no order of the court is necessary or proper substituting one attorney for another.</p> <p>A contract between an attorney and bis client fixing the amount of compensation upon a percentage of the amount to be recovered in the action or proceeding is valid and will be enforced unless the agreement was induced by fraud or the. attorney has taken some unconscionable advantage of the client.</p> <p>Where an attorney was engaged to institute proceedings to have his client reinstated as a civil service employee under a contract for a certain percentage of whatever amount the client recovered as back pay, and the proceedings were successful and the client reinstated, a dismissal of the attorney after the close of the proceedings, merely because he had filed a notice of his lien which prevented the client, without satisfaction of the lien, from drawing his back pay, does not relegate the attorney to an action in quantum meruit to recover for his services, but he may recover upon the contract.</p> <p>In proceedings to fix the lien of an attorney who was dismissed after the close of proceedings instituted by him, and whose compensation for services was fixed by a contract with the client, the question as to whether the attorney had practiced such fraud upon the client in the making of the contract as to vitiate it, should not be determined upon conflicting facts presented by the petition and the answering affidavits, but the matter should be adjudicated after the taking of testimony upon the allegation of fraud set forth in the petition.</p>

<p>Appeal by the defendant, Dahlstrom Metallic Door Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the City Court of the City of New York on the 11th day of December, 1919, affirming an order of the City Court of the City of New York, granting judgment on the pleadings, and also from the judgment entered thereon in the office of the clerk of said court on the 9th day of May, 1916, in favor of the plaintiff.</p>

<p>Appeal by the defendant, Philadelphia and Reading Coal and Iron Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of May, 1919, denying defendant’s motion to set aside the service of a summons and complaint herein, as resettled by an order entered in said clerk’s office on the 14th day of June, 1919.</p>

<p>Motion by the plaintiff, Matilda Murphy, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the decision of the court dismissing the complaint at the close of the plaintiff’s case after a trial at the New York Trial Term, in January, 1919.</p>

<p>Costs — appeals from City Court to Appellate Term from order and judgment — when costs matter of right, when discretionary — disbursements — fees paid to sheriff to free goods of levy of execution— stay of proceedings — contempt by issuing execution.</p> <p>Where the City Court of New York granted an order for judgment on the pleadings from which the defendant appealed to the Appellate Term and after the plaintiff had entered judgment and issued execution the defendant also appealed from the final judgment so that two appeals were pending, and the Appellate Term reversed both the order and the judgment, with costs and disbursements to the defendant, the latter was entitled to costs of the appeal from the judgment as a matter of right while the allowance of costs on the appeal from the order was discretionary and the granting of the latter costs did not limit the right to costs on the appeal from the judgment.</p> <p>The defendant was entitled to tax disbursements made to the sheriff for fees upon execution which were necessarily paid in order to free the defendant’s goods from the levy and to rid the premises of the presence of the sheriff’s officers.</p> <p>Where after the service of the notices of appeal the Appellate Term stayed all proceedings upon the part of the plaintiff toward the enforcement of the order for judgment until the hearing and determination of the appeal therefrom, it was a contempt for the plaintiff to issue execution, but the Appellate Division can take no action on the contempt where it is not brought before it by the defendants, except to express its disapproval of the attorney’s conduct.</p>

<p>Motor vehicles — negligence — lease of motor truck with agreement that lessor will indemnify lessee against damages — when lessor not liable to third person for injuries received.</p> <p>Where a company engaged in the business of hiring automobile trucks agreed with its lessee that the employees on the trucks would be furnished by the lessor and should be under its control and that the relation of master and servant should not exist between such employees and the lessee so that no claim for damages could be made against the lessee, and it was further provided that the lessor would indemnify the lessee for any legal liability arising through the acts of the chauffeurs furnished by the lessor, which also agreed to take out indemnity insurance for the benefit of the lessee, such agreement does not inure to the benefit of a person who was injured by a motor truck while engaged in delivering the goods of the lessee, the chauffeur being at the time subject to the directions and orders of the lessee.</p> <p>Irrespective of the ultimate liability as between lessor and lessee the liability for the injury to the third person depends upon the question as to who had the direction and control of the chauffeur at the time of the accident and in whose business he was then engaged, and recourse to the contract can be had to determine these questions.</p> <p>Smith, J., dissented in part.</p>

Appeal by the defendants, New York, New Haven and Hartford Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of December, 1918, upon the verdict of a jury, as amended by an order of the Supreme Court entered in said clerk’s office on the 6th day of January, 1919, and also from an order entered in said clerk’s office on the same day denying defendants’…

<p>Attorney and client — when attorney does not represent conflicting interests so as to bar his right to compensation.</p> <p>In an action by an attorney to recover alleged legal services claimed to have been rendered to the defendant, a moving picture actress, it appeared that the plaintiff with the express consent of a film corporation by whom he had been retained and of its president effected the release of the defendant from an oral contract with another corporation and also from any obligation under a tentative offer which she had made to another employer and that she was subsequently employed by said other corporation, and that the only possible interest that the plaintiff’s client the film corporation, or its president could have had in defendant was its or his desire to engage her services.</p> <p>Held, on all the evidence, that there were no adverse interests between the defendant and said film corporation and that, therefore, it was error to dismiss the complaint upon such theory.</p> <p>If an attorney attempts to serve two masters or to represent adverse interests or to discharge conflicting duties he is not entitled to compensation from either party. But it is only where the nature of his work or advice is such that he would find himself aiding one as against the other or being compelled to choose between them that the dual service will be held improper.</p>

Appeal by the defendant, Sefton Tranter, from so much of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of July, 1919, upon the decision of the court after a trial at the Kings County Special Term, as orders defendant to pay $150 as a counsel fee.

Appeal in each action by the defendant, Lehigh Valley Railroad Company, from judgments of the Supreme Court, one in each action, in favor of the plaintiffs; entered in the office of the clerk of the county of Erie on the 21st day of February, 1919, upon the verdict of a jury for $11,000 in the first action and $2,000 in the second action, and also from orders entered in said clerk's office on the 18th day of April, 1919, denying defendant’s motion for a new trial in each…

<p>Pledge — repledge — evidence showing pledgee was pledgor’s agent in repledging — action for money had and received — equitable defense — estoppel — pledge of collateral with unconditional ' power of disposition — repledge to secure pledgee’s own indebtedness — estoppel of owner of securities placed in hands of another to, secure loan to deny authority.</p> <p>In an action by an assignee it appeared that his assignor, for the purpose of securing funds to carry on its business, assigned all its accounts receivable to one D. who agreed to procure money thereon, under a written contract giving D. unlimited authority to sell, pledge or reassign said accounts; that D. reassigned said accounts to the defendant, that in the certificate of indebtedness given with each separate account assigned to D., the plaintiff’s assignor made certain representations for the purpose of “ inducing ” institutions or persons to whom D. might reassign to make a loan; that the plaintiff’s assignor repaid D., who did not turn the money over to the defendant, and that thereafter D. having failed the defendant received certain money on said assigned accounts, for the recovery of which this action was brought.</p> <p>Held, on all the evidence, that D. was the agent of plaintiff’s assignor, which, as a matter of law, was put upon notice that D. was a mere broker or “ go-between,” and was to reassign and repledge the collateral;</p> <p>That the payment by the plaintiff’s assignor to D. did not discharge its liability to the defendant, and that the latter was entitled to retain the security, until the debt thereby secured was paid;</p> <p>That the action is in the nature of one for money had and received by defendant, and as such is to be determined on equitable principles.</p> <p>The unconditional power of disposition having been intrusted by the plaintiff’s assignor to D., the principle of estoppel applies in favor of the defendant which took the collateral in good faith, and for value, relying on the express representations of the borrower.</p> <p>A pledgor can give his pledgee power to repledge or reassign collateral even to secure the pledgee’s own indebtedness. Such power was conferred on D. and was exercised in defendant’s favor.</p> <p>When the owner of securities places them in the hands of another for the purpose of inducing financial institutions and persons to part with their money, such owner is estopped from denying the authority of the person so intrusted with the securities; the owner has acted either intentionally or with such negligence as to entitle the lender to relief upon the ground that he has been misled.</p>

<p>Ships and shipping — demurrage defined — unreasonable detention necessary part of allowance for demurrage — pleading — complaint not alleging inconsistent causes of action — necessity for agreement to recover demurrage — contracts — validity of demurrage contract made after violation of shipping contract — parol evidence — consideration — counterclaim — when direction of verdict on is erroneous — abandonment of contract — sufficiency of evidence to sustain finding of negligence by defendant in loading boat.</p> <p>Demurrage is the amount agreed upon or the amount allowed by law for the unreasonable detention of a vessel.</p> <p>Unreasonable or unlawful detention contrary to the agreement of the parties, express or implied, is a necessary part of an allowance for demurrage, whether the amount is agreed upon as demurrage or allowed by law as damages for unlawful detention.</p> <p>Accordingly a complaint in an action to recover damages for the unlawful detention of a vessel by the shipper does not contain inconsistent causes of action requiring an election, where it is alleged that the plaintiff’s vessels were “ unduly, unreasonably and illegally detained ” by the defendant, either in the loading or discharging of cargoes, and that by reason of the unreasonable detention “ the plaintiff became and was entitled to demurrage at the customary and usual and agreed rate and for the reasonable value of the loss of use of said steamer ” in a stated sum.</p> <p>Demurrage may be recovered without any previous agreement to pay it, if the plaintiff makes out a case of wrongful detention of his vessel.</p> <p>An agreement to pay demurrage entered into after the shipper had unreasonably delayed the loading and unloading of cargoes does not vary the terms of an informal written charter party agreement which contained no stipulation as to demurrage, hut it is an independent agreement which may be proven by parol.</p> <p>Sufficient consideration exists for sueh subsequent' demurrage agreement where the shipowner agrees to carry out the original agreement which by reason of the violation thereof by the shipper he would have been justified in terminating.</p> <p>In an action to recover demurrage it is error for the court at the close of the plaintiff’s ease to direct a verdict in favor of the defendant on a eounterclaim based on the failure of the plaintiff to transport a part of the merchandise agreed to be transported, where the plaintiff in his reply-denied the allegations of the counterclaim and alleged affirmatively that if he failed to carry any part of the merchandise, it was due solely to defendant’s failure to furnish or unload cargoes at destination according to the contracts between the parties.</p> <p>A letter written by the plaintiff late in October stating that by reason of the delay in unloading he might be unable to get back before transportation was closed by the ice cannot be considered an abandonment of the contract as a matter of law, where thereafter plaintiff tendered his boats and the defendant loaded them.</p> <p>In the plaintiff’s second cause of action he claimed damages to his boat alleged to have been caused by the negligent loading by the defendant. Evidence examined, and held, to justify the jury’s finding in favor of the plaintiff.</p>

Appeal by the plaintiff, Edward Millar, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 17th day of April, 1919, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case. The plaintiff was injured on May 1, 1918, between five and six p. m., by the starting ahead of a Fifth avenue east-bound surface car on Atlantic avenue just west of Smith street, Brooklyn.

<p>Appeal by the defendant, Pines Rubber Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of June, 1918, and also from an order entered in said clerk’s office on or about the same day, as resettled by an order entered in said clerk’s office on the 7th day of June, 1918, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Holmes Music Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 7th day of March, 1919, upon the decision of the court after a trial without a jury.</p> <p>In July, 1915, defendant, a piano dealer of Middletown, Orange county, sold to plaintiff, who then lived in Ellenville, N. Y., a piano at the price of $225, payable in $5 monthly installments. The instrument, dated July 22, 1915, recited an indebtedness of $225 so payable, and that for securing the payment of said debt and interest, “ I do hereby sell, transfer and assign to the said Holmes Music Company, its successors or assigns, all the goods, chattels and property described as follows, viz: one Bredinol Piano. Style Mah. No...., also stool, book and scarf.” Then followed a warranty of ownership, with right to pledge, sell and transfer the same, also that it is now “ free and clear from any and all hens, claims and incumbrances, and is now in my possession and shall be kept at 12 Essex St.” in Ellenville. The instrument declares as an express condition “ that I shall pay to said Holmes Music Company the said sum of Two Hundred & Twenty-five Dollars ($225.00), with interest thereon from the date hereof as follows, viz: The sum of Five Dollars on the delivery of piano, and the further sum of Five Dollars or more per month together with interest on said principal sum payable with the said installments of principal, until the above amounts of principal and interest are paid in full; * * * which said sums and interest I hereby covenant and agree to pay in the manner above stated.”</p> <p>It was also provided that in case of non-payment of the debt or of any installment thereof, then the Holmes Music Company could enter and take possession of the property and sell same at public or private sale and apply the avails (less expenses) to payment of the debt; a right being also reserved, even before maturity of said installments, to take possession if the music company deems itself or said property or security unsafe, or if the property be removed from the stated address, or if it be secreted or sold or transferred without consent in writing of the music company. If the property fail to satisfy the debt, interest, costs and charges, “ the party of the first part covenants and agrees to pay the deficiency.” Also the music company could elect that the whole debt should become due in case of default in paying any of the installments of principal or interest. There was the usual covenant to keep the property insured; also the clause that any extension of the time of payment of any of the aforesaid payments should not be construed as a waiver of its covenants and conditions, but as mere indulgence and favor to the party of the first part.</p> <p>The piano was to be tuned twice a year free of charge; but if it should be removed too far from Middletown to be practicable to tune it, then the music company might be absolved from such obligation for free tuning.</p> <p>In the closing paragraph plaintiff acknowledged receipt of a copy thereof, and stated that she had “ no understanding in this transaction other than those herein set forth."</p> <p>On July twenty-third was given a receipt for the “ 1st payment on piano." In all, plaintiff paid $125, being for twenty-five months. In 1918 plaintiff left Ellenville and removed to Maybrook in Orange county (although this appears not to have been a permanent removal), leaving the piano at Ellenville. In March, 1918, the music company took possession of the piano for default in payment of her installments, and eventually sold the same at private sale for $108. On the main contention whether the instrument was a chattel mortgage or a conditional sale, the court held that it was a conditional sale, and adjudged defendant liable for its noncompliance with section 65 of the Personal Property Law, giving her judgment for $125 with interest and costs.</p>

Appeal by the plaintiff, Edward T. Buckingham, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of January, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the petitioner, Arthur C. Blatz, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 3d day of July, 1919, denying his motion for a peremptory writ of mandamus to compel his restoration to the position of attorney in the tax foreclosure department of the corporation counsel’s office of the city of Mount Vernon, N. Y. The respondent had appointed the petitioner on March…

<p>Corporation — election of negro to membership in pedic society pursuant to by-laws — rights of person duly elected enforced by mandamus — subsequent amendment to by-laws for purpose of excluding person elected — when application to corporation not prerequisite to petition for writ.</p> <p>Where the by-laws of a membership corporation, created by special act, to inculcate ethical principles, etc., among those practicing chiropody, merely provided that a person must receive a majority vote of the members present in order to become an active member, a person receiving such vote is entitled to membership which will be enforced by a writ of mandamus, in spite of the fact that after the election the chairman of the meeting refused to declare the petitioner, a negro, duly elected and the by-laws were subsequently amended so as to make five blackballs sufficient to reject a candidate, which number had been duly received by the petitioner. The attempt to reject the applicant by the subsequent amendment of the by-laws was a nullity and especially so where the by-laws provide that they shall not be altered or amended except by a three-fourths vote of all the active members present at an annual meeting.</p> <p>The writ should not be denied upon the ground that the application therefor is premature on the theory that the petitioner should first have made application to the society itself to review the action of the New York county division which had elected the petitioner, there being nothing in the by-laws to require such application.</p>

Appeal by the plaintiff, Harby Steamship Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of October, 1919, modifying an order for the examination of the respondent before trial by striking out the provision for the examination and inspection of its books and papers and by providing that said books and papers may be used only in connection with the oral…

Appeal by Elizabeth Clark, as administratrix, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 11th day of September, 1919, denying a motion to compel an executor whose letters have been revoked to turn over the assets of the estate to the administrator.

<p>Decedent’s estate — appointment of administratrix after revocation of probate — depository of moneys of estate ordered to pay over to administratrix.</p> <p>Where letters testamentary have been revoked and administration granted a bank in which the former executor has deposited the funds of the estate will be ordered to honor any cheeks on said funds drawn by the executor in favor of the administratrix, with the proviso that, if the executor does not obey the direction to turn over the funds, the trust company shall pay the same to the administratrix and take her receipt which shall be a sufficient voucher and acquittance for payment.</p>

Appeal by the plaintiff, The People of the State of New York, by permission, from an order and judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 25th day of August, 1919, as resettled, reversing a judgment of the Magistrate’s Court of the City of New York, borough of Brooklyn, rendered on the 29th day of May, 1919, convicting the defendant of a violation of subdivision 4 of section 887 of the Code of Criminal Procedure.

Appeal by the defendant, Stephano Reitano, from a judgment of the County Court of Kings county, rendered against him on the 24th day of June, 1918, convicting him of the crime of grand larceny in the second degree, and also from an order entered in said clerk’s office on the same day. denying his motion for a new trial. Under names of Binaro or Barbardo he had been before convicted of the offense of robbery in the third degree.

Appeal by the defendant, William A. Brodie, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of March, 1919, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 27th day of March, 1919, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The Ebling Brewing Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 28th day of November, 1917, upon the decision of the court after a trial at the Westchester Special Term dismissing the complaint against the defendant Isabella Dennison.

Appeal by the defendant, The Town of Somers, Westchester County, N. Y., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 20th day of January, 1919, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, John T. Farrell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 17th day of December, 1918, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the petitioner, Hazel B. Morse, from an order of the County Court of Dutchess county and from a judgment thereupon, entered in the office of the clerk of the county of Dutchess on the 7th day of November, 1918, dismissing the proceedings herein.</p> <p>Tliis is a summary proceeding to recover possession of real estate sold by the treasurer of Dutchess county for non-payment of taxes and bid in by the county which received a deed from the treasurer and afterwards sold the land to the petitioner’s predecessor in title.</p>

Motion to confirm report of the official referee, in proceedings brought to discipline or punish Charles E. Hunter, an attorney, for professional misconduct, finding that said Hunter is not qualified to continue in the practice of the profession.

Appeal by the defendant, Alberta Maurilla, from a judgment of the County Court of Rockland county, rendered against him on the 9th day of March, 1918, convicting him of the crime of murder in the second degree, and also from an order entered in said clerk’s office on the 31st day of December, 1918, denying defendant’s motion for a new trial upon the ground of newly-discovered evidence.

Appeal by the defendants, Bertha E. Schundler and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of January, 1919, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 29th day of January, 1919, denying defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Susie Church Holliday, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 31st day of July, 1919, in so far as such order modifies a report of commissioners of appraisal in condemnation proceedings and denies appellant’s motion to make the receiver of the plaintiff a party and compel such receiver to give further or other security in addition to or in place of the undertaking given by the plaintiffs to enable them to obtain possession of the condemned easements.</p>

Appeal by the plaintiff, Samuel Gunsburger, as administrator, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 16th day of March, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Charles Nathan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of November, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of November, 1918, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Harry Shanholt, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of September, 1919, granting plaintiff’s motion for judgment on the pleadings, consisting of the complaint and answer, and also from the judgment in favor of the plaintiff entered thereon in said clerk’s office on the 21st day of October, 1919, decreeing specific performance of an…

Appeal by the plaintiff, Arthur Falk, from an order of the Supreme Court, made at the New York . Special Term and entered in the office of the clerk of the county of New York on the 26th day of March, 1919, denying plaintiff’s motion for judgment on the pleadings, and sustaining a demurrer to the complaint with leave to plaintiff to serve an amended complaint.

Appeal by the defendant, Peter Cooper’s Glue Factory, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of September, 1918, upon the decision of the court after a trial before the court without a jury.

Appeal by the defendants, Manfred Malkin and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 3d day of July, 1919, overruling the demurrers to the complaint, with leave to defendants to withdraw the demurrers and to serve answers.

<p>Domicile — place of domicile aifter leaving old and before acquiring new — personal property — legal situs — appeal — when failure to plead foreign statute cannot be raised on appeal — wills — foreign wills — legatee receiving property thereunder governed by law of testator’s domicile — Colorado inheritance tax — validity as to resident of New York of assessment made on notice by mail-—legatees accepting legacies under Colorado will assume obligation to pay inheritance tax of that State — jurisdiction — right of one State to sue in courts of another — comity — taxes — right to recover in action where special statutory remedy ineffective — action by State of Colorado to recover inheritance tax — provisions in will that legacies shall be free of inheritance tax as defense to action therefor.</p> <p>The domicile' of a person continues until he acquires a domicile in another place. And so a testator, who had acquired a residence and domicile in Colorado, was still domiciled in said State at the time of his death in New York, though at that time he was on his way to Paris with the avowed purpose and intention of acquiring a domicile and residence there.</p> <p>The legal situs of personal property follows the domicile of the owner though the property is physically within another State.</p> <p>Where a statute of another State is received in evidence without objection, the point that the statute was not pleaded cannot be raised on appeal.</p> <p>The. will of the testator disposing of personalty and some real property in the State of New Jersey was probated in this State as that of a resident of Colorado and in the proceedings to determine the transfer tax due this State it was found that the testator was a resident of Colorado and the tax was assessed as upon the estate of a non-resident, and afterwards the estate was closed and the defendants received their legacies.</p> <p>Held, that the defendants, having invoked the aid of the State of Colorado and taken the testator’s property through the operation of its laws, must comply with any conditions that State may impose in granting- the benefit. •</p> <p>Accordingly in an action by the State of Colorado to recover an inheritance tax and to enforce a lien upon the distributed shares of the estate in the hands of the defendants, it is no defense that the defendants were not personally served within the State of Colorado with notice of the assessment of the tax, where the Colorado statute merely requires that notice be given by mail.</p> <p>The defendants having accepted the property bequeathed to them under the laws of Colorado assumed an implied obligation to pay the inheritance tax according to those laws, and an action by the State of Colorado to recover the same is based on that implied obligation.</p> <p>A State may seek in the courts of another State the relief or redress that any other corporation may demand.</p> <p>If a special remedy provided by statute for the collection of taxes is not effectual to compel payment in spite of the taxpayer’s determination not to pay, resort may be had to an action against the taxpayer.</p> <p>The fact that the State of Colorado could not enforce the payment of the inheritance tax in the manner prescribed by its Inheritance Tax Law does not prevent it from bringing an action in this State to recover from the defendants, on their implied obligation, the amount of the taxes due. The defendants by their conduct in the proceedings for the probate of the will in this State assumed the statutory obligation imposed by the Colorado statutes and thereby made it their contractual obligation enforcible in the courts of this State.</p> <p>Public policy does not prohibit the assumption of jurisdiction by the courts of this State in an action by the State of Colorado to recover an inheritance tax from residents of this State, and the principle of comity demands that our courts assume jurisdiction.</p> <p>It is no defense to an action to enforce a lien for the inheritance tax upon the distributed shares of an estate in the hands of the defendants that the will provided that the legacies should be free from any inheritance tax, where the statute fixing the tax specifically provides that all legacies shall be subject to the tax until the same shall have been paid as therein directed.</p>

<p>Bankruptcy — usury — suit by receiver to recover securities deposited as collateral for usurious loan — failure of plaintiff to tender payment — privilege under section 377 of General Business Law not available to receiver in bankruptcy.</p> <p>Where the defendant in an action to recover certain securities alleged to have been advanced to secure the payment of a usurious loan sets out in his answer the execution by the plaintiff of a general release under seal and the plaintiff by reply alleges that he has been duly adjudicated a bankrupt and a receiver of his effects has been appointed, which receiver has brought the action in the name of the bankrupt pursuant to an order of the Federal court, and that the release mentioned in the defendant’s answer was executed after the commencement of the proceeding in bankruptcy and the plaintiff makes no offer to repay the loan, the defendant is entitled to judgment on the pleadings. This, because the receiver is not given the same immunity which section 377 of the General Business Law gives to a borrower by authorizing him to bring an action to recover securities without a tender of the amount lawfully due.</p> <p>Section 70, subdivision a, clause 3, of the Bankruptcy Act, giving to a trustee the powers which the bankrupt might have exercised for his own benefit, but not those which he might have exercised for some other person, does not include said right of the bankrupt under section 377 of the General Business Law.</p> <p>The receiver appointed in the bankruptcy of the plaintiff has no greater power to institute an action without a tender of the debt due than the trustee in bankruptcy would have had.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office August 29, 1919, denying the defendant’s motion to vacate an order for examination of defendant before trial, and also from the order for examination.</p>

<p>Appeal from an order of the Supreme Court, hearing date August 26, 1919, and entered in the New York county clerk’s office denying the defendant’s motion for an order directing the service of an amended complaint.</p>

<p>Appeal by the defendant from a judgment of the Supreme Court, entered in the Orleans county clerk’s office May 6, 1918.</p>

Appeal by the plaintiff from an order of the Supreme Court, entered in the New York county clerk’s office August 19, 1919, so far as it denies plaintiff’s motion for a bill of particulars with respect to certain affirmative defenses set forth in the answer; also an appeal by the defendant from each and every part of said order.

<p>Appeal from a judgment of the Supreme Court in favor of the plaintiff, entered in the New York county clerk’s office November 20, 1918, upon the verdict of the jury.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office August 28, 1919, granting a motion to set aside service of a subpoena in assignment proceedings; also an appeal from an order of the Supreme Court entered September 4, 1919, granting a motion to set aside a third party order, a subpoena and a subpoena duces tecum in supplementary proceedings.</p> <p>Orders affirmed, with ten dollars costs and disbursements. No opinion. Present — Clarke, P. J., Dowling, Page, Merrell and Philbin, JJ.; Page, J., dissented.</p>